Franco v. State

• Decision Date: 30 December 1993
• Docket Number: No. 22932,22932
• Citation: 866 P.2d 247,109 Nev. 1229
• Parties: Ramon FRANCO, and Valentino Rodriguez Franco, Appellants, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 247

866 P.2d 247

109 Nev. 1229

Ramon FRANCO, and Valentino Rodriguez Franco, Appellants, v. The STATE of Nevada, Respondent.

No. 22932.

Supreme Court of Nevada.

Dec. 30, 1993.

Morgan D. Harris, Public Defender, Robert L. Miller, and Darren Richards, Deputy Public Defenders, Clark County, for appellant Valentino Franco.

David M. Schieck, Las Vegas, for appellant Ramon Franco.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, and Robert Langford, Deputy Dist. Attys., Clark County, for respondent.

OPINION

PER CURIAM:

Ramon Franco ("Ramon") and Valentino Rodriguez Franco ("Valentino") (collectively "appellants") were convicted after a jury found them each guilty of the first degree murder of Gilberto Echazabal ("Echazabal"). We conclude that the district court erred in admitting several hearsay statements made by Ramon's wife, Kim. In addition, the prosecutor engaged in misconduct when it used a statement ostensibly admitted only against Valentino against Ramon, and in commenting upon the failure of Ramon's wife to testify. We cannot say that these errors were harmless beyond a reasonable doubt, and we therefore reverse.

At 1:34 p.m. on October 8, 1990 Echazabal was killed when he was shot in the upper right chest and lower left abdomen. Echazabal had been arguing with two Hispanic males in front of the 7-11 store at Fairfield and Boston streets in Las Vegas when one of the two males fired two shots into him. One of the men jumped into a red Ford pickup truck with a rear tailgate missing and backed it up, while the other ran to the passenger side. The two then fled in the truck. Police recovered two shell casings stamped ".32 Auto," indicating that the gun used to kill Echazabal was an automatic.

Between 1:30 and 1:40 that same afternoon Oscar Tovar ("Tovar") heard a car pull up in front of his house at 4018 Edgewood Street, located within a mile of the 7-11. Through his open bathroom window, Tovar heard two doors slam and heard two excited male voices talking in Spanish. The men left the area and Tovar went outside, where he noticed a red pickup truck parked in front of his house. Investigators located the truck at Tovar's house, sealed it and towed it to the crime lab. Testimony showed that it had broken down after the battery had shifted and cut a hose, damage that was consistent with taking a turn onto the street at a high speed. The truck belonged to Valentino.

At 1:55 p.m. Valentino reported the theft of his red Ford pickup. Officer Jeff Warner drove to Valentino's apartment, where he saw Valentino, in a bathrobe, frantically waving him down. Valentino told Warner he had arrived home the previous evening after midnight, had stayed up with his wife until three in the morning, and had awakened the afternoon of the shooting at 1:00 p.m. Valentino said that he woke up and took a shower, and then noticed his car was missing, whereupon he reported the theft.

Warner began a routine check of the car's registration, at which time Valentino became nervous, started pacing back and forth and asked what was taking so long. Warner learned through the police computer that the vehicle might have been used in the shooting at the 7-11. Warner did not relay this to Valentino, but informed Valentino instead that a motor vehicle theft investigator was on the way. To this Valentino responded, "What did you say? Did you say my vehicle was involved in a murder or stuff?" When informed that Warner did not say that, Valentino responded, "Oh, I thought you said it was involved in some kind of stuff or something."

When homicide officers arrived, Valentino gave them permission to search the house. The officers noticed that the shower was "bone dry" and that there were no wet towels in the bathrooms. Lance Tharp, Ramon's employer at Charlie's Saloon, testified that he had seen Valentino with Ramon at 1:00 p.m. that day, and a neighbor of Ramon and Kim Franco's testified that Kim told her that Valentino had been at Ramon's house that morning.

In addition to the above circumstantial evidence, the state produced five eyewitnesses who recounted substantially the same sequence of events as one another, but whose identifications of the two men they saw at the 7-11 were inconsistent and even contradictory. On appeal the state conceded that the eyewitness testimony at trial was "a wash." Therefore, we do not review in detail the variations and contradictions of the several witnesses.

The state also called Charles Helsel ("Helsel"), Ramon's father-in-law, and Pauline Pitts ("Pitts"), Ramon's sister-in-law. Helsel was allowed to testify that Kim Franco, Ramon's wife and Helsel's daughter, told her father that she believed Ramon had killed someone and that Valentino had done it with him. Helsel also testified that Ramon answered "si" when Helsel asked him if he wanted a lawyer, and after he asked Ramon, "How guilty are you?" Kim was translating from English to Spanish during this conversation and it is unclear if the "si" was in response to "How guilty are you?" or "Do you want a lawyer?" Pitts was allowed to testify that Kim told her that Kim believed Ramon and Valentino had killed someone.

The state also called Kim's neighbor, Debra Broetz, who testified that Kim told her on the day of the shooting that she was afraid there was going to be trouble because Valentino had been at the house, was pacing back and forth, and Ramon was looking for the "clip" to his gun, and that the two brothers then left together.

As motive the state relied upon the testimony of the victim's wife, Nancy Echazabal, who testified that some ten months earlier, in December of 1989, Gilberto Echazabal had shot the appellants' brother, Daniel Franco, in a dispute at Echazabal's house. Although Daniel never told police who shot him, and neither did Ms. Echazabal, Valentino had allegedly told Ms. Echazabal that her husband, Echazabal, should not come around the hospital where Daniel was recuperating because "... Ramon, he was real mad, he was real upset, he want to kill him."

Finally, the state also relied on a videotaped interview between Kim Franco and a police detective. In that interview Kim speculated that Ramon and Valentino had committed the murder and told the officer that Ramon had said "I was there, I was there." Kim also repeated a statement allegedly made by Valentino, in which he said, "I don't care. He tried to hurt somebody in my family," in response to Kim's question, "How could you?" In addition, Kim confirmed in the video that Ramon and Valentino were together on the morning of the murder and again immediately after the shooting, and that Charlotte Franco, Valentino's wife, called to ask how one reports a car stolen. After deliberating for two days the jury returned verdicts finding each appellant guilty of first degree murder and not guilty of conspiracy to commit murder.

The admission of the videotaped interview and other statements by Kim Franco are the most serious errors that occurred during appellants' trial. We hold that the admission of these statements violated the hearsay rule and deprived appellants of their constitutional right to confront the witnesses against them.

An out-of-court statement offered at trial to prove the truth of the matter asserted in the statement is hearsay, and is inadmissible unless it falls within one of the recognized exceptions to the hearsay exclusionary rule. NRS 51.035, 51.065. In addition, in a criminal trial, the statement of a non-testifying hearsay declarant is only admissible under the Confrontation Clause ¹ if it bears adequate "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66-67, 100 S.Ct. 2531, 2539-40, 65 L.Ed.2d 597 (1980). Both hearsay and Confrontation Clause errors are subject to harmless error analysis. See Power v. State, 102 Nev. 381, 382, 724 P.2d 211, 213 (1986) ( citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)) (Confrontation Clause); Deutscher v. State, 95 Nev. 669, 683, 601 P.2d 407, 418 (1979) (hearsay).

Kim's hearsay statements, revealed through the videotape and through the testimony of Kim's relatives, were not admissible under any traditional exception to the hearsay rule, and the record is devoid of facts that would warrant the admission of the statements under the general hearsay exception. The state argued that Kim's statements were statements-against-interest. ² This exception allows a hearsay statement to be admitted to prove the truth of the statement when the statement is so contrary to the speaker's own interests that it can be assumed to be true. See 2 McCormick on Evidence § 318 (John W. Strong ed. 1992). In addition, the declarant must have had the opportunity to observe the facts so that she had personal knowledge of the matter. Id.; see also United States v. Lanci, 669 F.2d 391, 394-95 (6th Cir.1982); United States v. Lang, 589 F.2d 92, 97-98 (2d Cir.1978).

The state argued that Kim's admission that her husband was a murderer so tended to make her an object of hatred, ridicule or social disapproval that the statements, although they are only indirectly against her own interest, nevertheless fall within the social interest prong of the against-interest exception. The state is correct that Kim's statements were admissible under this exception if at all, only if the statements she made were in fact against her "social interest." ³ This is so because Kim did not expose herself to criminal or civil liability or say anything tending to harm her financial interests. We must therefore address the scope of the social interest exception.

Nevada is among the few states that include social interests as a basis for admitting hearsay testimony in their against-interest exceptions. The drafters of the Federal Rules of Evidence removed this basis for admission because of the "possibly unmanageable nature of a 'social interest' exception." See United States v. Dovico, 380 F.2d...